AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 9th day
of March, 1998 (the "Effective Date") by and between CondoView Corporation, a
Florida corporation ("CVC"), and Interval International, Inc., a Florida
corporation ("II"). II and CVC are sometimes hereinafter individually referred
to as a "Party", and collectively referred to as the "Parties".
RECITALS
A. CVC, a wholly owned subsidiary of Visual Data Corporation ("VDC"),
produces and markets the CondoView(TM) Library (the "CVC Library") containing
short, concise visual brochures ("Vignettes") depicting the specific
characteristics and amenities of vacation ownership resorts in full-motion
visual form (collectively the "CVC Business").
B. II is a provider of vacation ownership/time share exchange for
developers ("Developers") of vacation ownership/time share resorts (individually
the "Property" and collectively the "Properties").
C. Each Party wishes to engage the other Party to perform certain
services for the other Party and each Party wishes to be engaged to provide such
services for the other Party, pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements contained herein, the Parties mutually agree as follows:
1. Recitals. The recitals set forth above are true, correct and are
incorporated herein by reference.
2. Engagement.
a. CVC hereby engages II to perform the services set forth herein,
pursuant to the terms and conditions of this Agreement, and II hereby accepts
such engagement.
b. II hereby engages CVC to perform the services set forth herein,
pursuant to the terms and conditions of this Agreement, CVC hereby accepts such
engagement.
3. Services to be Provided by II.
a. II shall make its marketing and sales staff available for training
by CVC to market and promote the CVC Library to Developers and Properties for
inclusion in the CVC Library and as contemplated by this Agreement.
b. II shall use reasonable efforts to market, endorse, and promote the
CVC Library to
Developers and Properties, including, without limitation, sending letters that
market the CVC Business and CVC Library to Developers, in order to determine the
level of interest of Developers.
c. II shall use reasonable efforts to obtain "Initial Contracts", as
hereinafter defined, and to obtain deposits from Developers and Properties in
connection with such Initial Contract(s) in order that CVC shall create a
Vignette to be included in the CVC Library for each Property and/or Developer
that is the subject matter of an Initial Contract. The Initial Contracts shall
be substantially in the form and based substantially upon the terms and
conditions described on Exhibit A attached hereto and incorporated herein, and
the pricing for such Initial Contracts shall be in accordance with the pricing
schedule described on Exhibit B attached hereto and incorporated herein. CVC
further agrees that such terms, conditions, and pricing shall at all times be
reasonably consistent with or better than the terms, conditions and pricing
provided to other entities entering into similar agreements with CVC.
d. Within ninety (90) days from the Effective Date, II will use
reasonable efforts to assist CVC in obtaining "Test Group Initial Contracts", as
hereinafter defined, for between six (6) and ten (10) Properties (the "Test
Group Properties") as part of CVC's initial test, which initial test period
shall be six (6) months from the date that all of the Vignettes of the Test
Group Properties are available to travel agencies (the "Test Group Period"), to
participate in CVC's media/marketing program, pursuant to the terms and
conditions set forth in Exhibit A and Exhibit B attached hereto.
e. II shall use reasonable efforts to assist CVC in obtaining "Renewal
Contracts", as hereinafter defined, and in obtaining deposits from Developers
and/or Properties in connection with such Renewal Contract for each Property
that is the subject matter of an Initial Contract obtained through II's efforts.
f. II will provide advertising and editorial support in selected issues
of II's publications, including without limitation, Vacation Industry Review,
with quarter page or larger advertisements promoting the CVC Business with II.
II shall further promote the CVC Business and CVC Library through II's sales and
marketing personnel and at Info Exchanges, which are regional meetings held by
II for Developers, and through other mutually agreed upon materials and
meetings. Additionally, in the event II develops a future website targeted
towards Developers, II agrees to promote CVC Business on such website.
g. When used in this Agreement, the following terms shall have the
meanings set forth in this Section 3h or as otherwise set forth in this
Agreement.
(1) "Initial Contract" means a written agreement between one
Property, on the one hand, and CVC, on the other hand, that is obtained
through introductions made by II and which Property shall not have
previously contracted with CVC; provided that if a written agreement
includes more than one Property, that written agreement shall
constitute such number of Initial Contracts as shall be equal to the
number of Properties contained in such agreement.
(2) "Renewal Contract" or "Renewals" means a renewal of an
Initial Contract or a Test Group Initial Contract."
(3) "Test Group Initial Contract" means a written agreement
between a Test Group Property, on the one hand, and CVC, on the other
hand, that is obtained through introductions made by II and which
Property has not previously contracted with CVC; provided that if a
written agreement includes more than one Property, that written
agreement shall constitute such number of Test Group Initial Contracts
as shall be equal to the number of Test Group Properties contained in
such agreement."
4. Services to be Provided by CVC. CVC agrees to provide the following services
to II:
a. Upon execution of an Initial Contract, CVC shall undertake the video
taping and production of a digitized video Vignette of a Property, which
Vignette shall include a narrative with music, at a cost to each Property to be
quoted as set forth on Exhibit B.
b. CVC shall offer additional services to Properties and Developers
including, among others, creation of a longer video for marketing or promotional
purposes for such Property(ies) or Developer(s), or creation of a compilation
video for multi-site Developer(s), which costs and expenses shall be defined at
such time as the duties and obligations of each Party shall be determined and
mutually agreed upon.
c. CVC shall include the Vignettes described in Section 4a on CVC's
file server and at CVC's website (the "CVC Website") which shall be linked to
the homepage(s) of a Property's website ("Property Website"), provided one
exists, as well as the appropriate Interval International Resort Directory
listing page and other mutually agreed upon links. CVC further agrees to promote
the Vignettes and related offers from participating CVC Properties through CVC's
strategic alliance websites. CVC agrees to provide a list of the current CVC
strategic alliance websites at any time upon II's request, and to make deletions
thereto as reasonably requested by II. II's failure to request deletions within
thirty (30) days of its receipt of such a list may be relied upon by CVC as II's
approval of such list.
d. CVC shall provide II with a monthly tracking report itemizing resort
bookings with regard to participating CVC Properties that are booked by travel
agencies using the Global Distribution System ("GDS") which CVC will arrange for
contractually through a third party service provider, which service provider
shall be managed by CVC (a list of such CVC Properties shall be provided by CVC
to II, and which list shall be updated as additional Properties are added to the
list of CVC Properties). Information such as passenger name, arrival and
departure date, and the rate charged will be provided. CVC further agrees to
provide CVC Properties with such monthly tracking reports (specifically relating
only to a particular Property's bookings), only upon II's written approval and
request.
e. CVC will use reasonable efforts to create a mechanism whereby
consumers shall be able to directly book accommodations on the Internet. Until
such a mechanism is available, CVC agrees to develop and maintain appropriate
Internet cross-links to enable consumers to contact participating CVC travel
agencies via the Internet in order to book accommodations.
f. CVC shall customize a laser disc of the Test Group Properties, to be
made available to its participating travel agencies, which will also include
certain location attractions available to CVC from its attractions library at
the time of printing.
g. CVC shall make available any portion of videotape or film or any
other media prepared by CVC that has been fixed in a tangible medium of
expression by CVC in connection with Properties who contract with CVC (the "CVC
Content") for multi-media purposes, subject to the terms and conditions set
forth in this Agreement.
h. CVC will make translations from U.S. English into other languages
and include applicable distribution to international travel agencies and the
Internet as these translations become available, at additional costs and
expenses to the Property as set forth on Exhibit C.
i. CVC may, from time to time, at its sole discretion, provide the
opportunity for a Property to distribute news of special pricing promotions by
means of CVC's distribution channels.
j. CVC shall permit II, as well as the Properties and/or Developers who
enter into Initial Contracts and/or Renewal Contracts with CVC, to use the
Vignettes for any and all marketing/promotional purposes so long as the CVC
"bug" (burned in logo) remains visible to the naked eye at all times, and the
provisions of Section 8 herein shall be in full force and effect. II shall have
the right to terminate this Agreement upon written notice to CVC during the
thirty (30) day period following II's receipt of a copy of the CVC "bug" in the
event II does not approve of the form and/or size of such "bug".
k. CVC shall make reasonable efforts to produce a marketing Vignette
which shall include the Vignettes of the Test Group Properties to be used by
both CVC and II to help promote and market the CVC Business, as well as for use
at trade shows including, among others, the ARDA shows.
l. CVC shall provide to each Property a booking mechanism that will
ensure the smooth flow of processing contracted reservations, via a third party
who shall be managed by CVC. CVC will be responsible for monitoring and
overseeing all linkages to the GDS for each Property under contract. CVC
acknowledges that Xxxxxxx Companies, Inc. ("Xxxxxxx") is a financial investor in
II. Accordingly, CVC agrees to use reasonable efforts to work with II and
Xxxxxxx to create any enhancements and operational interfaces which may be
needed to promote the Properties to Xxxxxxx-owned and/or franchised travel
agencies in a manner that is more user-friendly and appealing to such agencies,
upon mutually agreeable terms and conditions.
m. Upon II's request, CVC agrees to offer its expertise to II by
consulting with II regarding multimedia technologies, DVD, CD-ROM, Interactive
Kiosks, and related matters, under mutually agreeable terms and conditions.
n. CVC agrees that all commission rates initially established by CVC to
be paid by Developers or Properties to CVC and/or participating travel agencies,
shall be mutually agreed upon with II. Thereafter, CVC shall have the right to
make reasonable adjustments to such initial rates upon thirty (30) days written
notice to II.
5. Consideration.
a. As the sole consideration for the services to be provided by and the
obligations of II to CVC, II shall receive such commission as is set forth on
Exhibit B of this Agreement.
b. All commissions due to II pursuant to this Agreement shall be paid
by CVC within thirty (30) days after receipt of funds by CVC. All commission on
installment sales shall be paid in corresponding installments. In connection
therewith, CVC shall furnish II with a full, complete and accurate accounting
showing dollar amounts received in connection with the Initial Contracts (or
Renewals) and such accounting shall also include detailed information sufficient
for II to reasonably determine the status of all contracts and payments made on
each of the Initial Contracts and Renewals obtained by II on behalf of CVC.
c. CVC and II agree that commencing on the Effective Date and
continuing until June 1, 1999, CVC shall not: (i) enter into any agreement or
arrangement with, or perform services for or on behalf of, any time share or
vacation ownership exchange company or program, or any entities related thereto,
including, but not limited to, Resort Condominiums International, Inc. (RCI) and
Cendant Corporation; or (ii) provide similar services, as set forth herein, to
time share/vacation ownership resort developers and/or Home Owner's Associations
(HOA) who use RCI as an exchange service and do not also have an existing
relationship with II. CVC and II further agree that during the remaining term of
this Agreement following June 1, 1999 (including any renewals hereof), CVC shall
continue to be bound by the prohibitions set forth in clause (i) of the
preceding sentence, but shall no longer be bound by clause (ii), and thus shall
then be entitled to contract with or provide similar services for time
share/vacation ownership resort developers and HOAs who solely use RCI as their
exchange service. CVC and II further agree that during the term of this
Agreement (including renewals hereof), II shall not enter into any agreement or
arrangement with any other business that produces and markets a library
containing short, concise visual brochures depicting the specific
characteristics and amenities of vacation ownership resorts in full-motion
visual form. CVC acknowledges and agrees that any agreement or arrangement
between II and Xxxxxxx and/or its affiliates relating to any promotional
activities through Xxxxxxx'x intranet and/or Xxxxxxx'x window/channel
technology, shall not be prohibited by the preceding sentence or any other
provision in this Agreement. Each party acknowledges that a violation of the
provisions of this Section 5c may result in irreparable harm to the business of
the other party for which money damages alone would not be adequate
compensation. Accordingly, in addition to any other legal remedies which may be
available, each party agrees that the other party shall be entitled to
injunctive or other equitable relief to prevent the violating party from
committing any violation of this Section 5c.
d. At the end of the Test Group Period, II and CVC shall evaluate the
success of the CVC services and if deemed to be successful by II and CVC, then
II shall promote and market the CVC Business with and to Developers and
Properties.
6. The CVC Business. The Parties to this Agreement specifically agree that the
CVC Business as defined in Recital A of this Agreement, is the only business of
CVC and any additional products or services that may be developed, created,
produced, marketed or distributed, including
without limitation, any additional libraries or content, by Visual Data
Corporation ("VDC"), the parent company of CVC, or any affiliates of VDC, shall
not be deemed to be a part or portion of the CVC Business or an asset or assets
of CVC or in any other manner be related to CVC.
7. Intellectual Property.
a. II shall not assert any right, title or interest in or to CVC
Content, the CVC Library or any Vignettes contained therein. II acknowledges and
agrees that CVC has reserved all right, title and interest in and to the
copyright, the right to apply for copyright registration, and any extensions and
renewals, in all publication, reproduction, broadcast or other derivative rights
of each Vignette and the CVC Library including, but not limited to merchandising
rights, use of title rights, publication rights, and foreign edition rights.
Except as specifically set forth in this Agreement there is no other grant of
license to II by CVC in connection with any Vignette or the CVC Library.
b. At all times, CVC shall own all rights, title and interest in and to
the xxxx CondoView(TM) (the "Xxxx") and shall undertake such actions and execute
such documents to ensure its proprietary ownership interest thereto. CVC
similarly acknowledges II's ownership of all right, title and interest in and to
the marks "Interval", "Interval International", "Interval Travel" and any
similar marks, and acknowledges that II shall also undertake such actions and
execute such documents to ensure its propriety ownership interest thereto. Each
Party agrees not to use the other Party's marks without the other Party's prior
written approval, and upon receipt of such approval, to use such marks in
conformance with such requirements as may be established by the other party from
time to time.
8. Grant of Non-Exclusive License.
a. During the Term (and any renewals thereof) as set forth in Section
10 of this Agreement, CVC hereby agrees to grant to II, a limited,
non-exclusive, personal right and license to use the CVC Xxxx, CVC Library, and
CVC Content and any related rights and privileges provided under the trademark,
copyright, trade secret and other laws of the United States, the individual
states thereof, and jurisdictions foreign thereto, and the goodwill associated
therewith solely in connection with its marketing and promotional materials and
activities, and II accepts such grant. During the Term (and any renewals
thereof) as set forth in Section 10 of this Agreement, II hereby agrees to grant
to CVC, a limited, non-exclusive personal right and license to use II's marks
solely in connection with its provision of services under this Agreement, and
only upon II's prior written approval in each instance (in conformance with the
requirements of Section 7b above).
b. The above grant of license notwithstanding, all modifications,
improvements, derivative works or otherwise created in connection with any CVC
property by any Party, and specifically including the CVC Marks, the CVC
Content, the Vignettes and the CVC Library, that is the subject of a grant of
such licenses shall be the property of CVC.
c. II or any of its affiliates or subsidiaries is specifically
prohibited from ever using any CVC Content, directly or indirectly, in
connection with any type of competing library depicting the specific
characteristics and amenities of resorts available for time share in full-motion
visual form
or in connection with any competitors of CVC.
9. Term.
a. Initial Term. Except as otherwise provided herein, this Agreement
shall commence on the Effective Date and continue for a period of two (2) years
thereafter. The previous sentence notwithstanding, during the month of June,
1999 only, either party may terminate this Agreement upon ten (10) days written
notice. Thereafter, the Term shall automatically be renewed for additional one
(1) year periods upon the mutual consent of the Parties.
10. Termination.
a. Immediate Termination. This Agreement may be terminated immediately
upon written notice by either Party upon the occurrence of any of the following
events:
(1) Any assignment of this Agreement by either Party in
violation of Section 13 herein;
(2) Commencement of voluntary proceedings by the
non-terminating Party or of any involuntary proceedings against the
non-terminating Party under any provision of any Federal or State act
relating to bankruptcy or insolvency;
(3) Any legal or equitable proceeding against the
non-terminating Party, resulting in a judgment or decree, if the sale
of all or substantially all of the non-terminating Party's assets are
contemplated or threatened as a result of such judgment or decree.
b. Termination After Failure to Cure Breach. If either Party commits a
material breach of any of the provisions of this Agreement, the non-breaching
Party may terminate the Agreement at any time, if after providing written notice
to the breaching Party of the alleged breach or failure, the breach or failure
remains uncured for a period of thirty (30) days after receipt of such notice.
c. Authority after Termination. After termination of this Agreement, II
shall have no further express authorization or consent from CVC to use its
Library or any CVC Content in any manner whatsoever.
11. Indemnification.
a. Each Party shall indemnify and hold harmless the other Party from
and against any and all claims, liabilities, demands, judgments, damages, suits,
losses, penalties, expenses, and costs of any kind or nature whatsoever,
including, but not limited to, reasonable attorneys' fees, arising directly or
indirectly out of or in connection with: (a) a breach of this Agreement by such
Party and/or its officers, directors, representatives, employees or agents: or
(b) the negligence or intentional misconduct of such Party and/or its officers,
directors, representatives, employees or agents.
b. In addition to the provisions set forth in Section 11.a above, CVC
shall indemnify and hold harmless II from and against and shall be responsible
or liable for, any claims, liabilities, damages, losses, costs and attorneys'
fees, including, but not limited to, any indirect, special, incidental,
consequential or punitive losses or damages of any kind, including lost profits,
with respect to any and all content of the Vignettes including that such CVC
Content is in compliance with applicable laws, rules and regulations.
c. The provisions of this Section 11 shall survive the expiration or
termination of this Agreement.
12. Relationship of the Parties. The relationship of CVC to II shall be that of
independent Parties to this Agreement. Nothing in this Agreement shall be
construed to place the Parties in the relationship of partners, joint venturers
or agents, and neither II nor CVC shall have the power to obligate or bind each
other in any manner whatsoever.
13. Assignment. This Agreement shall be binding upon the Parties hereto, their
heirs, legal representatives, successors and assigns. This Agreement shall not
be assignable by the either Party without the prior written consent of the other
Party, which consent shall not be unreasonably withheld or delayed.
14. Miscellaneous Provisions. Any notice required or permitted to be given under
the terms of this Agreement shall be sufficient if in writing and if sent
postage prepaid by registered or certified mail, return receipt requested; by
overnight delivery; or by courier; addressed as set forth in the introductory
paragraph. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute but one
agreement. The captions contained in this Agreement are inserted only as a
matter of convenience and in no way define, limit, extend or prescribe the scope
of this Agreement or the intent of any of the provisions hereof. This Agreement
constitutes the entire understanding between the Parties and supersedes and
cancels any and all previous agreements and understandings between the Parties
pertaining to the subject matter of this Agreement, with the exception of a
Confidentiality Agreement dated March 31, 1997, between II and VDC, which shall
remain in full force and effect and shall continue to bind II, VDC and CVC. This
Agreement may be amended, modified, superseded or canceled, and any of its
terms, covenants, representations, warranties or conditions may be waived, only
in writing signed by duly authorized representatives of both Parties. The
previous sentence notwithstanding, the Parties specifically acknowledge that
neither Party has had any obligation(s), arrangements, agreements, contracts, or
otherwise, whether oral, written, express or implied, to one another prior to
the execution of this Agreement with the exception of the aforementioned
Confidentiality Agreement. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition. The invalidity or unenforceability,
in whole or in part, of any covenant, promise or undertaking, or any section,
subsection, paragraph, sentence, clause, phrase or word or of any provision of
this Agreement shall not affect the validity or enforceability of the remaining
portions thereof. This Agreement shall become valid when executed and accepted
by both Parties. The Parties agree that this Agreement shall be deemed
negotiated, made and entered into in the State of Florida and shall be governed
and construed under and in accordance with the laws of the State of
Florida. The Parties agree that this Agreement shall be governed by the laws of
the State of Florida, without giving effect to any conflict of laws principles.
Venue for any such action, will be Miami-Dade County, Florida. This Agreement
shall be construed within the fair meaning of each of its terms and not against
the Party drafting the document.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth in the first paragraph of this Agreement.
Witness: CONDOVIEW CORPORATION,
a Florida corporation
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By: /Xxxx X. Xxxxxx/
--------------------------
Name: _______________________
Its: ________________________
Witness: II International, Inc.,
a Florida corporation
By: /Xxxxxxx X. Xxxxxxx/
--------------------------
Name: _______________________
Its: ________________________
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